Paddy Deighan is a real estate investor, attorney and advocate. This blog is dedicated to providing useful information, tips and guidelines for all of your real estate needs.

Saturday, July 23, 2011

Another Victory for Home Owners Fighting Forclosure

Chalk another victory up for home owners fighting back against lenders. The Maine Supreme Court overturned a Summary Judgment in favor of a servicing agent against the home owners. In the case of Kondaur Capital Corp. vs Hankins, the trial court had granted summary judgment in favor of the lender agent, but the Maine Supreme Court overturned the ruling.

This is an example though of several things. First, this does NOT mean that the Hankins will still prevail. The matter theoretically still must be heard in court. The Summary Judgment was overturned which means that everyone must start over. Procedurally, the case is returned t the trial court with instructions from the Supreme Court. However, the ruling clearly establishes that the Plaintiff did not have standing because it was not the original party on the note. The trial court will be hard pressed to rule in favor of the lending agent.

Another interesting aspect to this case is that the Hankinses failed to assert that the Plaintiff did not have standing during the original Summary Judgment motion. This is very significant because the Maine Supreme Court ruled that it does not matter when the issue is raised. This is VERY significant because in many areas of law, if you do not TIMELY assert a defense, you lose it. This is referred to as laches…the legal equivalent of “if you snooze, you lose” . LOL The Hankinses did not assert the defense until the appeal. It is really difficult typing the plural of Hankins! LOL

There clearly seems to be momentum in home owner claims of lack of standing, produce the note defenses etc. Standing is a fundamental precept of law. However, it is rarely raised because in the vast majority of cases, standing is not an issue. The well celebrated MERS cases and robo signer have clearly raised awareness. Foreclosure defense attorneys are also more aware of the issue. I have been successfully asserting the defense in many cases and it has been very successful